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2014 DIGILAW 1519 (ALL)

Pt Brij Raj Tripathi v. Malti Devi

2014-05-09

ANIL KUMAR

body2014
JUDGMENT Anil Kumar, J.: - Heard Sri D.C. Mukherji , Advocate assisted by Sri Rajeiu Tripathi, learned counsel for the appellant and Mohd. Arif Khan, learned Senior counsel assisted by Sri Mohiuddin Khan for respondent and perused the record. 2. With the consent of learned counsel for the parties, Second Appeal Nos. 805 of 1981 and 806 of 1981 are being heard and decided together. 3. The facts which are relevant for the disposal of the present appeals in brief are that in the City of Bahraich, at Mohalla Barahiyapura, there is a house which originally belongs to one Ori Lal, his pedigree is a under: - Ori Lal (Ganga Dei (wife) Bacchu Devi(daughter) Krishna Devi ( Daughter) Parag (Husband) (Sampat (Husband) died issue-less Ram Dularey alias Ram Prasad Km. Malti Devi Km. Kanti Devi 4. On 10.06.1932, Sri Ori Lal executed a Will in respect to house in dispute in favour of Smt. Bacchau Devi and Ram Dularey @ Ram Prasad, thereafter he died. On 21.3.1956, Bacchau Devi and Ram Dularey @ Ram Prasad have executed a sale-deed in respect to eastern portion house in dispute in favour of Kulbhushan and Kishana Pyari. The said persons on 22.6.1965 executed a sale deed of the eastern portion in favour of Pt. Brij Raj Tripathi. 5. On 07.08.1972 Smt. Bacchau Devi and Smt Krishna Devi executed a Will deed (registered) in favaour of Km. Malti Devi and Km. Kanti Devi in respect to western portion of the house in dispute as well as certain potion of the land which Smt. Kanti Devi had purchased by way of registered sale deed dated 21.04.1961 from Raja Saheb Nanpara. 6. On 1.12.1973, Ram Dularey @ Ram Prasad executed a sale deed in respect to half portion of the western side in favour of Pt. Brij Raj Tripathi. 7. In view of the said factual background, Km. Malti Devi and Smt. Kanti Devi filed a suit for permanent injunction registered as Regular Suit No. 437 of 1973 in the Court of Civil Judge, Bahraich with a prayer that the defendants may be restrained not to interfere in their peaceful possession of the western portion of the house. 8. On 21.04.1974, Pt. Brij Raj Pritathi filed regular Suit No. 175 of 1974 in the Court of Civil Judge, Bahraich impleading Km. Kanti Devi and Km. 8. On 21.04.1974, Pt. Brij Raj Pritathi filed regular Suit No. 175 of 1974 in the Court of Civil Judge, Bahraich impleading Km. Kanti Devi and Km. Malti Devi, Ram Dularay @ Ram Prasad and Dayawati for partition of the half share of the western portion of the house. 9. So far as the Regular Suit No. 437 of 1973 filed by Km. Malti Devi and Smt. Kanti Devi is concerned, the same was decreed against all the defendants except Pt Brij Raj Tripathi by means of judgment and decree dated 24.05.1980 and the suit filed by Pt Brij Raj Tripathi for partition has also been allowed by judgment and decree dated 24.05.1980. 10. Aggrieved by the judgments passed by the trial court, Km. Malti Devi and others filed a Civil Appeal No. 150 of 1980 (Km. Malti Devi and others Vs. Pt. Brij Raj Tripathi). They also filed a first appeal No. 15 of 1980 (Km. Malti Devi and others Vs. Pt. Brij Raj Tripathi and others) against the jdugment and decree dated 24.05.1980 passed in Regular Suit No. 175 of 1974. 11. In addition to two appeals, Ram Dularey @ Ram Prasad also filed a Civil Appeal No. 173 of 1980 against judgment passed by the trial court in Regular Suit No. 437 of 1973, thereafter, appellate court had consolidated all the three appeal and heard together decided by the judgment and decree dated 08.07.1981, operative portion of the same is as under: - " The Civil Appeal No. 151 of 1980 is herewith allowed in part. All the defendants of the suit no. 437 of 1973 are permanently restrained from interfering in the possession of the plaintiff in that suit over the house in dispute. The Civil Appeal no. 150 of 1980 is partly allowed. The appellants are given benefit of Section 4 of the Partition Act. The portion of the house purchased by Pandit Brij Raj Tripathi from Ram Dularey will be transferred to the appellants for the consideration for which it was purchased by him during the course of the execution proceedings. The Civil Appeal no.173 of 1980 is dismissed. Km. Malti Devi and Smt. Kanti Devi shall receive their costs of both the courts of both the suits and all the three appeals." 12. Against the judgment and decree dated dated 8.7.1981 passed in Civil Appeal no. 150 of 1980 ( Km. The Civil Appeal no.173 of 1980 is dismissed. Km. Malti Devi and Smt. Kanti Devi shall receive their costs of both the courts of both the suits and all the three appeals." 12. Against the judgment and decree dated dated 8.7.1981 passed in Civil Appeal no. 150 of 1980 ( Km. Malti Devi and others Vs. Pt. Brij Raj Tripathi and others ), Pt. Brij Raj Tripathi has filed Second Appeal No. 806 of 1981 and against the judgment and decree dated 8.7.1981 passed by District Judge, Bahraich in civil appeal no. 151 of 1981 he filed Second appeal No. 805 of 1981( Pt. Brij Raj Tripathi Vs. Km. Malti Devi and others ). 13. Present appeals have been admitted on the following substantial question of law: - "What are the conditions precedent to the applicability of Section 4 of the Partition Act is the substantial question of law in this case." 14. Sri D.C. Mukherji, learned counsel for appellant while challenging the impugned judgments and decree passed by the appellate court submits that after selling of the eastern portion of the house which belongs to Ori Lal, the western portion of the same is not a dwelling house of undivided family, so Section 4 of the Partition Act is not applicable hence the impugned judgment and decree passed by the appellant court being contrary to law is liable to be set aside. 15. In addition to abovesaid facts, Sri D.C. Mukherji, learned counsel for appellants has raised another argument that after selling of the eastern portion of the house which belonged to Ori Lal the western portion of the house in dispute comes in the share of Smt. Bachau Devi and Ram Dularey @ Ram Prasad, and they do not constitute and come within the ambit and scope of undivided family, rather, the western portion does not belongs to undivided family so as per the provisions of Section 4 of the Partition Act, the appellant, Pt. Brij Raj Tripathi has got right to get his suit for partition to be allowed, and the said fact has been completely ignored by the appellate court while passing the impugned judgment and decree. In support of his argument, he has placed reliance on the judgment passed in the case of Ram Bilas Tewari Vs. Smt. Shiv Rani and others, AIR 1977 Allahabad 437. 16. In support of his argument, he has placed reliance on the judgment passed in the case of Ram Bilas Tewari Vs. Smt. Shiv Rani and others, AIR 1977 Allahabad 437. 16. Next argument advanced by Sri D.C. Mukherji, learned counsel for appellant that in the western portion of the house in dispute, there is a tenant and this fact has been established from the assessment order issued by the Municipal Authority in the year 1964-65 as well as the statement given by Samim Ahmad in the year 1981 that there is a tenant in the disputed house, so once there is a tenant in the western portion of the disputed house who is not the member of undivided family,the plea as raised by the appellant for partition of his share as per Section 4 of the Partition Act is fully applicable, however, the said fact has been completely ignored by the appellate court while passing the impugned judgment and decree. In supported of his argument he has placed reliance on the judgment given by this Court in the case of Smt. Prabhawati Devi Vs. IInd Additional District Judge, Ghazipur and others, 1998 (2) ARC 76 . 17. Accordingly, Sri D.C. Mukherji, learned counsel for appellant submits that the judgment and decree passed by the appellate court in Civil appeal No. 150 of 1980 and Civil appeal No. 151 of 1981 may be set aside and the present appeals may be allowed. 18. Sri Mohd. Arif Khan, learned Senior Counsel while supporting the judgement and decree passed by the appellate court submits that after selling of the eastern portion of the house in question, the western remains in the possession of the Smt. Bachchau and Ram Dulare @ Ram Prasad, so he same is a dwelling house belongs to undivided family as both of them are living in the said portion as an unit. 19. He vehemently argued that Smt. Bachchau and Ram Dulare @ Ram Prasad as well as Smt. Malti Devi and Smt. Kanti is one unit and comes within the ambit and scope of undivided family, so keeping in view the said facts, the action on the part of trial court thereby passing the decree in favour of respondents Sri Brij Raj Tripathi (appellant in the present appeal) by invoking the provisions of Section 4 of the Partition Act is a not valid exercise. In this regard, he has placed reliance on the following judgments: - 1.Masitullah And Anr. vs Umrao And Ors., AIR 1923 Allahabad 414. 2.Babu Ram Vs. Lal Ram, AIR 1929 Allahabad 415 3.Mt. Sohni Vs. Raj Kumar Singh, AIR 1932 Allahabad 678 4.Chaudhri Mohammad Sulaiman Khan Vs. Mt. Amir Jan, (28) AIR 1941 Allahabad 281 5.Krishna Pillai Vs. Parukutty Ammla AIR (39) 1952 Madras 33). 6.Babu Lal Vs. Habibnoor Khan (Dead) By Lrs. And others, 2000(5) SCC 662 . 7.Gautam Paul Vs. Debi Rani Paul and others, 2000 (8) SCC 330 . 8.Gyan Chand and anothers Vs. Sumit Rani and others ( 2002 (9) SCC 477 . 9.Mrs. Janki Vashdeo Bhojwani and another Vs. The Indusind Bank Ltd. and others, 2004 (22) LCD 968. 10. Zamir Ahmad (Dead) by Lr and others Vs. Samson Claudius and others, 2005 (23) LCD 472 . 11. Sri Ram and others Vs. Ram Kishan and others, 2010 (80) ALR 346. 20. Sri Mohd. Arif Khan, learned Senior Counsel further submits that as per the provisions as provided under Section 4 of the Partition Act, the intention of the legislature is that house will remain to be dwelling house of undivided family even if some of the portion has been let out to a tenant. Because, as per the terms of the agreement to sale dated 17.11.1972 in respect to half of the portion of the western side of the house entered between Ram Dularey @ Ram Prasad with Pt. Brij Raj Tripathi as well as sale deed dated 01.12.1973 executed between them. It is clearly established that there is no tenant in the western portion of the house as in the said documents, it is clearly mentioned that house in question Mustakan, and is in the possession of Ram Delarey, so keeping in view the said facts as well as law as laid down in the case of Santosh Kumar Mitra Vs. Kalipa Das, AIR 1981 Calcutta 278, after placing reliance on the judgment of Bhagirath Vs. Afaqu Rasul AIR 1952 Allahabd 207, even if some portion of the dwelling house of the family is let out to a tenant, it does not by itself lead to the conclusion that the house is not a dwelling house of undivided family. In this regard, he has place reliance on the judgment reported in AIR 1968 Calcutta 245, Manick Lal Singh Vs. In this regard, he has place reliance on the judgment reported in AIR 1968 Calcutta 245, Manick Lal Singh Vs. Gouri Sankar Shah, AIR 1964 Calcutta 52, Satyendu Kundu Vs. Amar Nath Ghosh and others. 21. Accordingly, he submits that there is no illegality or infirmity in the judgment passed by the appellate Court and the present appeal filed by the appellate are liable to be dismissed. 22. After hearing learned counsel for parties and going through the record, I am concerned with the construction of Section 4 of the Partition Act the provisions of the said section can be adverted to with profit before proceeding any further in the matter. It is in the following words : - "Partition suit by transferee of share in dwelling-house . - (1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. (2) If in any case described in sub section (1) two or more members of the family being such share-holders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section." 23. The foundation for the enactment of Section 4 of the Partition Act was laid while framing Section 44 of the Transfer of Property Act. Hence in order to fully understand the implications of the said section, it would be advisable and profitable to cast a glance on Section 44 of the Transfer of Property Act which envisages as under : - "44. Transfer by one co-owner. Hence in order to fully understand the implications of the said section, it would be advisable and profitable to cast a glance on Section 44 of the Transfer of Property Act which envisages as under : - "44. Transfer by one co-owner. -Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share of interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family nothing in this section shall be deemed to entitle him of joint possession or that common or part enjoyment of the house." 24. It is manifest from above that Section 44 of the Transfer of Property Act permits the transfer of a share in an undivided property to any person and the transferee on transfer would acquire an interest and a share in the property in proportion of the transfer in the said property and later on he can claim joint possession of the said property or even can enforce a partition of the same. 25. However, there is an embargo on the right of a transferee to claim joint possession in case he is a stranger and the dwelling-house is the property of an undivided family. Section 44 of the Transfer of Property Act did not give any right to the member of an undivided family to purchase the share so transferred to a stranger at a price to be fixed by the Court. This right was conferred on the member of an undivided family by the legislators in their wisdom through the enactment of Section 4 of the Partition Act subsequently in the year 1893. This right was conferred on the member of an undivided family by the legislators in their wisdom through the enactment of Section 4 of the Partition Act subsequently in the year 1893. The objects and reasons for the enactment of the Partition Act are as under : - "It is also proposed in the Bill to give the Court the power of compelling a stranger who has acquired by purchase a share in a family dwelling-house when he seeks for a partition, to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the Court. This provision is only an extension of the privilege given to such shareholders by Section 44, paragraph 2 of the Transfer of Property Act, and is an application of a well-known rule which obtains among Muhammadans everywhere and by customs also among Hindus in some parts of the country." 26. The underlying idea behind the enactment of Section 4 of the Partition Act was to maintain peace and tranquility in the family which was likely to be disturbed if a stranger was inducted into the dwelling-house by a member of the family through the sale of his share. 27. It was also meant to prevent the fragmentation and sub-division of the property into smaller units. A close scrutiny of Section 4 of the Partition Act would reveal that a person who wants to take advantage of the said provision of law must show the followings for its applicability : - (a) there must be a dwelling-house belonging to an undivided family; (b) a portion of the same has been transferred to a stranger; (c) the said transferee sues for partition; and (d) one of the co-owners in the property must be willing to purchase the share so transferred to a stranger on a valuation to be fixed by the Court. 28. Section 4 of the Partition Act has been considered by this Court in the case of Masitullah And Anr. vs Umrao And Ors., AIR 1923 Allahabad 414, held as under: - "The sole question in this appeal is whether the defendants are entitled to the benefit of Section 4, Partition Act. A right to partition being one of the incidents of proprietary right held in co-ownership cannot ordinarily be resisted. vs Umrao And Ors., AIR 1923 Allahabad 414, held as under: - "The sole question in this appeal is whether the defendants are entitled to the benefit of Section 4, Partition Act. A right to partition being one of the incidents of proprietary right held in co-ownership cannot ordinarily be resisted. Where the effect of the partition is calculated to destroy the intrinsic value of the entire property it should be more in keeping with equity, not to allow the partition but to grant a money compensation. Section 4(1), Partition Act, provides: Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as he thinks fit, and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. 4. Section 4 of this Act is an enabling section but it ought to be strictly construed as it raises a statutory bar to the exercise of the right of partition in derogation of the right under the ordinary law. The object of this section is to enable the members of an undivided family to buy out a stranger who has purchased the share of one or the other of the co-owners. For the application of Section 4, four conditions ought to be fulfilled: (1) The house should be owned by an undivided family. (2) The share of a co-sharer should have been transferred to a person who was a stranger to the family. (3) The purchaser should have sued for partition and (4) A member of the family being a share holder claims or undertakes to buy the share of the stranger transferee. (See. Khirode Chander Ghosal v. Saroda Prasad Mitra [1910] 12 C.L.J. 525, and Gobardhan Das V. Hari Lal [1913] 35 All. 364)." 29. In the case of Mt. Sohni Vs. (3) The purchaser should have sued for partition and (4) A member of the family being a share holder claims or undertakes to buy the share of the stranger transferee. (See. Khirode Chander Ghosal v. Saroda Prasad Mitra [1910] 12 C.L.J. 525, and Gobardhan Das V. Hari Lal [1913] 35 All. 364)." 29. In the case of Mt. Sohni Vs. Raj Kumar Singh Jain and Others, AIR 1932 Allahabad 678, this Court held as under: - "Apart from this consideration the provisions of Section 4 are general enough to apply to every dwelling house a share of which has been transferred to a person who is not a member of the undivided family to which the house belongs and is sought to be partitioned. If the family is large enough to need several dwelling houses to accommodate it, and the share of one of the members in all such houses is transferred to a stranger, on no principle can the other members of the family be precluded from availing themselves of the protection afforded by Section 4, Partition Act." 30. In the case of Chaudhri Mohammad SulaimanKhan Vs. Mt. Amir Jan, (28) AIR 1941 Allahabad 281, this Court has as under: - "Section 4, Partition Act, enjoins that in case of a transfer of a dwelling house belonging to an undivided family the share of the transferee may be valued, and price may be paid to him. In a Pull Bench case of this Court, Sultan Begam v. Debi Prasad ('08) 30 All. 324, it has been explained that undivided family in Section 4, Partition Act, does not mean an undivided Hindu family but it applies to undivided families of all castes and com-munities and in order to comply with the condition Lal d down in the section all that is necessary is that the family should be undivided qua the dwelling house which is the subject-matter of partition and it is not necessary that the family should be undivided with regard to other properties also. (See also Krishna Pillai Vs. Parukutty Ammla AIR (39) 1952 Madras 33)" 31. Hon'ble Apex Court in Ghantesher Ghosh Vs. Madan Mohan Ghost and Ors. (See also Krishna Pillai Vs. Parukutty Ammla AIR (39) 1952 Madras 33)" 31. Hon'ble Apex Court in Ghantesher Ghosh Vs. Madan Mohan Ghost and Ors. AIR 1997 SC 471 ) has observed that provision of Sec. 4 of the Partition Act, is a BENEVOLENT provision enacted by the legislature for the welfare and tranquility of the members of a joint family occupying the dwelling house, the provisions must be construed as to make it available at all the relevant stages of the litigation between the contesting co-owners till the litigation reaches its terminus by way of full and final discharge and satisfaction of the final decree for partition. The Hon'ble Apex Court after considering the entire scheme of the Partition Act and so also the restricted right of the stranger under Sec. 44 of the Transfer of Property Act, in para 17, it has been held as under: - “17. As a result of the aforesaid discussion, it must be held that Section 4 of the Act can validly be pressed in service by any of the co-owners of the dwelling house belonging to undivided family pending the suit for partition till final decree is passed and thereafter even at the stage of execution of the final decree for partition so long as the execution proceedings have not effectively ended and the decree for partition has not been fully executed and satisfied by putting the shareholders in actual possession of their respective share. Beyond that stage, however, Section 4 will go out of commission. 32. In the case of Babu Lal Vs. Habibnoor Khan (Dead) By Lrs. Beyond that stage, however, Section 4 will go out of commission. 32. In the case of Babu Lal Vs. Habibnoor Khan (Dead) By Lrs. And others, 2000 (5) SCC 662 , after placing reliance in the case of Ghanteshwar Ghosh(Supra), Hon'ble the Supreme Court held as under: - "(1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein; (2) The transferee of such undivided interest of the co-owner should be an outsider or stranger to the family; (3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned; (4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-emption by undertaking to buy out the share of such transferee; and (5) While accepting such a claim for pre-emption by the existing co-owner of the dwelling house belonging to the undivided family, the court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house." 33. Hon'ble the Apex Court in the case of Gautam Paul Vs. Debi Rani Paul and others, 2000 (8) SCC 330 , held as under: - ""The object of Section 4 is to prevent the disintegration of the family dwelling house by preventing to introduce stranger therein. The stranger is adequately compensated by the market value of the property purchased so that dwelling house of the family be preserved. The view that it must be strictly construed and that until and unless the stranger either sues for partition as a plaintiff or asks for separate allotment as defendant (sic) be accepted then the whole object of Section 4 would be frustrated. In a suit for partition parties are interchangeable. The view that it must be strictly construed and that until and unless the stranger either sues for partition as a plaintiff or asks for separate allotment as defendant (sic) be accepted then the whole object of Section 4 would be frustrated. In a suit for partition parties are interchangeable. The defendant can, at any time before the decree for partition is finally passed, ask for separate allotment. The right under Section 4 is available to the co-sharer as soon as a preliminary decree is passed. The defendant may frustrate the right of the co-sharer to buy out the share by not asking for separate allotment up to the last moment. The possibility cannot be ruled out that after the co-sharer's right of preemption Under Section 4 is rejected on the ground that the defendant has not asked for separate allotment, the defendant could ask for separate allotment. In this way if the view of Netai Dass's case be accepted great injustice will be caused to the co-sharer of an undivided family dwelling house(See also Gyan Chand and anothers Vs. Sumit Rani and others ( 2002 (9) SCC 477 )" 34. Thus, in view of the abovesaid facts, it can be said that the application of Section 3 and 4 of the Partition Act, 1893 giving preemptive right to co-sharers to purchase the share of party, who is not the member of the family, who has asked for division and partition of the property by metes and bounds and such a division cannot reasonably and conveniently be made and court directs such sale of property, such co-sharer can exercise his right under Section 3 of the Act at any stage of litigation in a partition suit from its inception till its termination and the mandate of Section 3 of the Act is that the Court shall direct the valuation of the property so as to determine the valuation of the share or shares of the party asking for sale and offer the same to such share holder at the price so ascertained so as to achieve the object of the Act itself enshrined in the said provision, namely, having regard to the strong attachment of the people in this country to their landed possession, to give opportunity to such co-sharer to exercise his pre-emptive right to purchase the share of party asking for such sale. The power given to the Court under Section 3 of the Act is discretionary one to be exercised on consideration of the circumstances of the case. Such pre-emptive right is an equitable right and therefore can be defeated by the circumstances like waiver, acquisence etc. (See. Zamir Ahmad (dead) by Lrs. & others Vs. Samson Claudus and others, 2005 (23 LCD) 472). 35. Section 44 of the Transfer of Property Act, contemplates a transfer of share in immovable property. It deals with the share of a co-owner of immovable property who is legally competent to transfer his share. The transferee acquires the transferors right to joint possession or other common or part enjoyment of the property and a right to enforce partition of the share or interest so transferred at the date of transfer. The second part of Section 44 is quite clear. It dis-entitles a transferee of a share in a dwelling house belonging to an undivided family to joint possession or other common or part enjoyment of the house. It is a restriction on the rights of such a transferee to joint possession. 36. Therefore in a suit brought under Section 44 of the Transfer of Property Act the Courts have to record findings on the questions as to whether: - “a) The immovable property is owned by two or more co-owners. b) The transferor of share is legally competent to transfer his share. c) The right of the transferee to enforce partition and thereafter right to joint possession. d) The transferee is a stranger to the family. The Courts have also to record a finding on the questions under the second part of Section 44 and if it is a dwelling house belonging to an undivided family then such a stranger transferee is not entitled to joint possession unless it is partitioned. 37. Hon'ble the Apex Court in the case of Siddheshwar Mukerjee Vs. Bhubneshwar Prasad Narain Singh and others reported in AIR 1953 SC 487 in paragraph 11 held as under: - "Civil Appeals Nos. 54 and 55 of 1951. Coming now to the money appeals, the point for consideration is a short one. 37. Hon'ble the Apex Court in the case of Siddheshwar Mukerjee Vs. Bhubneshwar Prasad Narain Singh and others reported in AIR 1953 SC 487 in paragraph 11 held as under: - "Civil Appeals Nos. 54 and 55 of 1951. Coming now to the money appeals, the point for consideration is a short one. The suits out of which these appeals arise were instituted by the plaintiff in the partition suit against the first party defendants for recovery of his 4 annas share of the income or profits of the properties specified in the schedules to the plaints and which were included admittedly in his purchase, on the allegation that the defendants first party appropriated the entire profits to themselves and refused to give the plaintiff his legitimate share. The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of his purchase. The result is that these appeals are dismissed with costs. (See. Siya Ram and others Vs. Ram Skishan and others, 2010 (80) ALR 346)". 38. Accordingly, first point to be considered and decided in the present case is to the effect that whether after the selling of the eastern portion of the house in question, the western portion is a dwelling house of undivided family or not ? Meaning of the "dwelling house" has been considered by Hon'ble the Apex Court. 39. In the case of Narashimaha Murthy Vs. Susheelabai and others, AIR 1996 SC 1826 , held as under: - "The expression "dwelling-house" has not been explained elsewhere than in the Section 23 itself. There is no specific definition of the expression in the Act as such. Meaning of the "dwelling house" has been considered by Hon'ble the Apex Court. 39. In the case of Narashimaha Murthy Vs. Susheelabai and others, AIR 1996 SC 1826 , held as under: - "The expression "dwelling-house" has not been explained elsewhere than in the Section 23 itself. There is no specific definition of the expression in the Act as such. Because of that, various commentators of the subject have foreseen that the courts were likely to face a problem in defining it. According to Webster Comprehensive Dictionary, the expression "dwelling-house" means a house built for habitations a domicile. In law it may embrace the dwelling itself and such buildings as are used in connection with it. According to Black's Law Dictionary (sixth edition), under statute prohibiting breaking and entering a "dwelling- house", the test for determining if a building is such a house is whether it is used regularly as a place to sleep. In Stroud's judicial Dictionary (fifth edition), the expression "dwelling-house" has been described as a house with the super-added requirement that it is dwelt in or the dwellers in which are absent only temporarily, having animus revertendi and the legal ability to return Ford v. Barnes, [55 L.J.Q.B.34]. It is described that the word "inhabitant" would seem to bring about more fully the meaning of the word "dwelling-house". In Words and Phrases (Third Edition)] a quotation is available from Lewin v. End [1906 AC 299 at 304] attributed to Lord Atkinson in whose words a "dwelling- house" as understood by him was "a house in which people live or which is physically capable of being used for human habitation". Another quotation from R. v. Allison [1843 (2) LTOS 288 at 289] is available of Maule, J. saying that a house, as soon as built and fitted for residence, does not become a dwelling-house until some person dwells in it. In T.P. Mukherjee's The Law Lexicon (Volume I) 1989, it is stated at page 565 that a dwelling-house, as the words imply, projects the meaning that the house or a portion thereof is an abode of his, available to him at all times without any let or hindrance by others. Further thereat is stated that a dwelling place is one where a person inhabits and in law should be his domus mansionalis. Further thereat is stated that a dwelling place is one where a person inhabits and in law should be his domus mansionalis. In Aiyar's Judicial Dictionary (11th Edition), an old decision of the Allahabad High Court in Fatime Begum Vs. Sakina Begum [1 All 51] has been mentioned in which it has been held that the words "dwelling or "residence" are synonymous with domicile or home and mean that place where a person has his fixed permanent home to which whenever he is absent, he has the intention of returning. An extraction from Commissioner of Income Tax v. K.S. Ratanaswamy [ 1980 (2) SCC 548 at 553] is also quotable saying that primarily the expression "dwelling place" means "residence", "abode" or "home" where an individual is supposed usually to live and sleep and in the context of a taxing provision which lays down a technical test of territorial connection amounting to residence, the concept of an "abode" or "home" would be implicit in it. In other words, a dwelling place must be a house or portion thereof which could be regarded as an abode or home of the assessee in taxable territories." 40. In the case of Chaudhri Mohammad Sulaiman Khan Vs. Mt. Amir Jan, (28) AIR 1941 Allahabad 281, it has been held that some of the cases in which Section 4 was applies to the case or not there is no dispute as to law which is applicable to the ca?e. Section 4, Partition Act, enjoins that in case of a transfer of a dwelling house belonging to an undivided family the share of the transferee may be valued, and price may be paid to him. In a Pull Bench case of this Court, Sultan Begam v. Debi Prasad ('08) 30 All. 324, it has been explained that undivided family in Section 4, Partition Act, does not mean an undivided Hindu family but it applies to undivided families of all castes and com-munities and in order to comply with the condition Laid down in the section all that is necessary is that the family should be undivided qua the dwelling house which is the subject-matter of partition and it is not necessary that the family should be undivided with regard to other properties also. 41. In the case of Krishna Pillai Vs. 41. In the case of Krishna Pillai Vs. Parukutty Ammla AIR (39) 1952 Madras 33, held as under: - "I have perused the records and heard the learned counsel on both sides. Mr. Venkatachala Sastri, for the appellant, raised the same three contentions before me. He stated that it was wrong to hold Parukutty and Thangammal, sisters in a Hindu 'Mitakshara' family owning the house in common, to belong to "an undivided family", as they could never be deemed members of the same 'joint Hindu family.' But there are many rulings holding that the phrase "dwelling house belonging to an undivided family" in Section 4 should be construed in 'a liberal and comprehensive way' and should not be confined to the dwelling house of 'a joint Hindu family,' but should include a house where a group of persons related by blood live,' and that it is not necessary that they should be descendants from a common ancestor, or that they should constantly reside in the dwelling house, or that they should be joint in mess, and that the fact that the dwelling house has been 'blown down, either by wind or in War, will not make it any the less a dwelling house of an undivided family so long as the members have not abandoned it or at any rate given up the idea of using it as such. It is enough to quote the rulings in 'Sivaramayya v. Kappa Venkatasubbamma' 'Sultan Begum v. Dehi Prasad' 'Babulal Tiwari v. Hullah Mullah' and 'Nilkamal v. Kamakshya Charan', where several other rulings also have been referred to and discussed. It is clear in the light of these rulings that the house in question was rightly considered by both the Courts below to be "a dwelling house belonging to an undivided family", even though Parukutty and Thangammal were undoubtedly not members of a Hindu joint family. These two were closely related by blood and were living in the same house. Such sisters, even in a 'Mitakshara family, will be termed by all people as "members of the same family" though not of the same joint Hindu family, and when these sisters have been living for years and years in that undivided house, inherited by them from their mother, it is obvious that Section 4 will apply." 42. A Division Bench a Calcutta High Court in the case of Santosh Kumar Mitra Vs. A Division Bench a Calcutta High Court in the case of Santosh Kumar Mitra Vs. Kalipa Das, AIR 1991 Calcutta 278, in para 19 held as under: - "As regards Panchanani Dasi the learned Subordinate Judge has found against her relying upon a decision of the Bombay High Court (AIR 1936 Bom 197). This decision lays down that a female of an undivided family marrying and going to live in her husband's house prima facie gives up her intention of residing in the old house belonging to the family and being married is also no longer a member of the family and as such is not entitled to the benefit of Section 4 of the Partition Act. We have already indicated that undivided family has been used in Section of the Partition Act to mean a family not divided qua the dwelling house. It does not mean a joint family as commonly understood. Therefore from the fact that one of the cosharers being married has been residing in her husband's house, it does not follow that she has lost her right to claim relief since the dwelling house remains undivided of which she is a co sharer. The Bombay case relied on by the learned Subordinate Judge came to be considered in the case of Rukia Bi v. Rajia Bibi AIR 1963 Mad 298 , and the view taken in the Bombay case was dissented from. This was a case where reliefs were sought for by a Mohammedan female marrying into another family. It was held that under Section 4 it is not necessary that the co sharer applying for relief should continue to be a member of the family. Where therefore, there is no doubt that the house is a family dwelling house and that the petitioner is a co sharer who is entitled to a share in that house on partition even though married and living in her husband's house would be entitled to maintain an application under Section 4 of the Partition Act. In the case before us the claim of Panchanani Dasi cannot be defeated in view of the decision in the Bombay case. Apart from anything else that was a case before the commencement of the Hindu Succession Act. In the case before us the claim of Panchanani Dasi cannot be defeated in view of the decision in the Bombay case. Apart from anything else that was a case before the commencement of the Hindu Succession Act. The position of Hindu female even though married into another family has since considerably changed and she is entitled to claim relief on partition of the dwelling house. The view expressed by the Bombay High Court in the case relied on by the learned Subordinate Judge came to be considered by this High Court also in the case of Salyendu v Amarnath : AIR1964Cal52 (supra) but the view was found unacceptable. In that view of the matter we are unable to sustain the order of dismissal passed in Misc. Case No. 41 of 1962 filed at the instance of Panchanani Dasi. Her claim is sustainable in law and consequently her application also must succeed." 43. And in respect of undivided family Hon'ble Apex Court in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, AIR 1991 SC 867, held as under (relevant paragraph): - "... in it (section 4 of the Partition Act) we find nothing to indicate that it was intended to apply to any limited class of the community. The words 'undivided family' as used in this section appear to be borrowed from section 44 of the Transfer of Property Act. The last clause of that section prescribes that where the transferee of a share of a dwell- ing house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the dwelling house. This provision of the Statute is clearly of general application, and the effect of it is to compel the transferee of a dwelling house belonging to an undivided family, who is a stranger to the family, to enforce his rights in regard to such share by partition. There appears to me to be no reason why the words 'undivided family' as used in section 4 of the Partition Act, should have a narrator meaning than they have in section 44 of the Transfer of Property Act. If the Legislature intended that section 4 should have limited operation, we should expect to find some indication of this in the language of the section. If the Legislature intended that section 4 should have limited operation, we should expect to find some indication of this in the language of the section. For example, instead of the words 'undivided family' the expression 'undivided Hindu family' or 'joint family' might have been used. With reference to the object and purpose of such a provision the Full Bench further observed: "as was pointed out by Mr. Wells, Judicial Commissioner, in the case of Kalka Parshad v. Bankey Lall, [1906] 9 Oudh Cases, 158 is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferor's family have a right to live, and that the words 'undivided family' must be taken to mean 'undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it'." Again in construing the word "family" and 'undivided family' a Division bench of the Calcutta High Court in Khirode Chandra Ghoshal & Anr. v. Saroda Prosad Mitra, [1910] 7 IC 436 observed: "The word 'family', as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is nothing in the Partition Act to support the suggestion that the term 'family' was intended to be used in a very narrow and re- stricted sense, namely, a body of persons who can trace their descent from a common ancestor." 44. In the case of Gautam Paul Vs. Debi Rani Paul and others, 2000 (8) SCC 330 , in para No. 12, Hon'ble the Supreme Court held as under: - "Mr. Sanyal also relied upon the case of Khirode Chunder Ghosal v. Saroda Prosad Mitra, reported in XII Calcutta Law Journal 526. In this case it is held. In the case of Gautam Paul Vs. Debi Rani Paul and others, 2000 (8) SCC 330 , in para No. 12, Hon'ble the Supreme Court held as under: - "Mr. Sanyal also relied upon the case of Khirode Chunder Ghosal v. Saroda Prosad Mitra, reported in XII Calcutta Law Journal 526. In this case it is held. "The term "family" is not defined in the Partition Act, and we do not think that it would be possible or desirable to frame a comprehensive formula or exhaustive definition to indicate all that is easily understood by the term " family." As was well observed by Kindersley, V.C. in Green v. Marsden, (1953) 1 Drewry 646 (651), 61 E.R. 598, the word "family" is, in itself, a word of a most loose and flexible description. It is, in fact, as Wickens V.C. said in Burt v. Hellyar, (1872) L.R. 14 Eq. 160, a popular and not a technical expression, and its meaning is often controlled by the context. As is pointed out in the Oxford Dictionary, Vol. IV, page 55, although the term "family" is sometimes used to include those descended or claiming descent from a common ancestor, it has, very often, a much wider import; it is often used to indicate a body of persons formed by those who are merely connected by blood or affinity; it is sometimes used to include even a body of persons who live in the house or under on head. In the case of Wilson v. Cochran, (1869) 31 Texas 677, 98 Am. Dec. 553, the matter was put clearly and concisely as follows: "The term family embraces a collective body of persons living together in one house or within the curtilage. In legal phrase, this is the generic description of a 'family'. It embraces a house- hold comprised of parents or children or other relatives or domestic servants, in short, every collective body of persons living together within the same curtilage, subsisting in common, and directing their attention to a common object, the promotion of their mutual interests and social happiness. This is the most popular acceptation of the word." The description herein suggested may, perhaps, be deemed, in some respects, too wide. But one thing is, in our opinion, beyond dispute. This is the most popular acceptation of the word." The description herein suggested may, perhaps, be deemed, in some respects, too wide. But one thing is, in our opinion, beyond dispute. The word "family", as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is nothing in the Partition Act, to support the suggestion that the term "family" was intended to be used in a very narrow and restricted sense, namely, a body of person who can trace their descent from a common ancestor." Mr. Sanyal also relied upon the case of Paluni Del v. Rathi Mallick and Ors., reported in AIR 1965 Orissa 111. In this case the question was whether a married daughter, who was residing with her husband at some other place, could be said to be a member of the family. It was held that the word "family" as used in the Partition Act must be given a liberal and comprehensive meaning and should include a group of persons related in blood, who live in one house or under one head or management. It is held that there is nothing in Partition Act to support the suggestion that the terms "family" was intended to be used in a very narrow and restricted sense, namely, a body of persons who trace their descent from a common ancestor. It was held that it is not necessary that the terms "dwelling house" belonging to an undivided family should include a house where a group of persons related by blood live and that it was not necessary that they should descend from a common ancestor or should constantly reside in the dwelling house or that they should be joint in mess so long as the members of the family have not abandoned their intention to reside in it." 45. As per the said position of law in respect to the meaning of dwelling house undivided family and the situation/position which exists in the present case that after selling of the eastern portion of the house, in the western portion the Bachchau Devi, Smt. Shanti Devi, Malti Devi and Ram Dularey @ Ram Prasad defendants to the suits are jointly living as a one unit, so the western portion of the house in dispute comes within the definition and ambit of the dwelling house of undivided family. 46. So, the submission as made by Mohd. Arif Khan, learned Senior counsel for respondents that the western portion of the house in question is a dwelling house of undivided family consisting of Smt. Bachchaua, Smt. Kanti Devi, Smt. Malti Devi and Ram Dulary @ Ram Prasad is perfectly valid. 47. Another point to be considered in the present case that if some portion of the premises in question is let out to a tenant then in that circumstances section 4 of the Partition At will apply or not. 48. Although on the record of the present matter there is assessment of the Municipal authority in the year 1964-65 in which it is shown that there is a tenant in some portion of the western portion of the house in question and it is also evident from the statement given by Md. Samin in the matter. But, on the other hand, from the agreement to sale as well as sale deed executed between Ram Dulary @ Ram Prasad and Pt. Brij Raj Tripati it is stated that there is no tenant in the premises in question. Hence, keeping in view the said facts as well as the law on the point in issue as laid down by Calcutta High Court in the case of Santosh Kumr Mitra (Supra) after placing reliance on the judgment given by this Court in the case of Bhagirath (Supra) it has been held as under: - "17. The only point on which the claim is sought to be resisted js that a part of the house, may be a considerable part of it has been let out to tenants. The question is whether this amounts to cessation of the house being a family dwelling house. In the case of Dulal Chandra. The only point on which the claim is sought to be resisted js that a part of the house, may be a considerable part of it has been let out to tenants. The question is whether this amounts to cessation of the house being a family dwelling house. In the case of Dulal Chandra. Gosthabehari : AIR1953Cal259 , it was observed that any suspension of occupation or for the matter of that, the absence of the owners of the house therefrom or an occupation or terminable occupation by tenants, cannot have the effect of making the house ceasing to be a dwelling house. In the case of Satyendu V. Amarnath AIR1964Cal52 , a Division Bench of this Court has held that the mere fact that a major part of the house was let out to tenants did not prima facie take the case put of the operation of Section 4 of the Partition Act. Relying on these decisions we may justifiably hold that the fact that the premises was let out to tenants by itself is inconsequential unless it can be shown that it was so let out by the owners with the intention of never returning to it or using it as a residential house. From the evidence on record such an intention cannot be spelt out. On the other hand, it will bear repetition that some of the cosharers have come back to reside in the house. The intention to use the house as dwelling house is an important criterion in determining whether a house continues to be a dwelling house of the family or not. In the case of Bhagirath v. Afaq Rasul AIR1952All207 , it was observed that even though the house may fall into a state of complete disrepair and not actually in use as a dwelling house, it will nevertheless continue to be a family residential house if the members of the family intend to use it as such as soon as they can conveniently do so. 18. All these tests are satisfied in this case and we do not see why the claim of Kalipada Das for relief under Section 4 of the Partition Act should not be allowed. 49. In the case of Satyendu Kundu (Supra), the Calcutta High Court held as under: - "13. 18. All these tests are satisfied in this case and we do not see why the claim of Kalipada Das for relief under Section 4 of the Partition Act should not be allowed. 49. In the case of Satyendu Kundu (Supra), the Calcutta High Court held as under: - "13. These being the tests to be applied, let us apply them to the facts of the present case. It has been bound as a fact by the Courts below that Debendra had purchased the house in 1935 and he and his large family resided in the premises in question until 1943-44, after which he started letting out the various rooms in the said premises to tenants but retained one room in which he resided. This room was also used by his son Jnanendra and also by other members of the family. Jnanendra purchased a house for himself in 1949, but he did not stop using the said room nor did he abandon the intention of using the same at any time. Upon these facts, both the Courts below held that the provisions of Section 4 were satisfied and relief was granted under it. In our opinion, the decisions were correct. The fact that a major portion of the house was let out to tenants does not, for reasons stated above, take it out of the operation of Section 4. There is nothing in the facts of the present case to show that the parties did not have any intention of resuming possession. The fact again that Jnanendra had purchased a house for himself in 1949 does not take the matter out of the operation of Section 4. It has been found as a fact that he continued to be in possession of one room and never abandoned the intention of residing therein. So far as the married daughters are concerned, there is no specific finding as to where they reside at present; but it has been found as a fact that the members of the family were using this room in the said premises from time to time. The fact that some of the owners were married daughters, presumably living with their husbands, away from the dwelling house, does not by itself take the matter out of the operation of Section 4. Lastly, it was contended by Mr. The fact that some of the owners were married daughters, presumably living with their husbands, away from the dwelling house, does not by itself take the matter out of the operation of Section 4. Lastly, it was contended by Mr. Jana that the fact that Amar Nath Ghose got the house not by inheritance but by a deed of gift took the matter outside the operation of Section 4. I am unable to appreciate this argument. 1 do not see what difference it makes because Amarnath Ghose has got 5/8th share. In the property by a deed of gift and net by inheritance, if he can file a suit for partition, as he has done, Section 4 of the Partition Act would at once apply. The manner in which a share has devolved on a member of a family which owns a share in the dwelling house is immaterial. What is necessary is that such a member should be entitled to bring a suit for partition, which pre-supposes that the dwelling house is still undivided so far as the members of the family are concerned. In such a case, it would be an undivided family owning a dwelling house, within the meaning of Section 4. The tests therefore are fully satisfied in the facts and circumstances of the present case. I shall now refer to some decisions of other High Courts referred to by Mr. Jana. He has referred us to the decision of a single Judge of the Bombay High Court -- Bal Fatma v. Culamnabi Hajibhai, AIR 1936 Bom 197. Macklin, J. took notice of the Full Bench Decision of the Allahabad High Court, ILR 30 All 324 (supra), where it was held that the words "undivided: family" in Section 4 must be taken to mean undivided 'qua' the dwelling house in question, that is to say, a family which owns the house but has not divided it. The learned Judge however held that a woman who marries and goes to live in her husband's house, 'prima facie' gives up her intention to continue to reside in her old house and in that view dismissed the application under Section 4. This view is not in accordance with the view expressed by this High Court, and cannot be followed. The learned Judge however held that a woman who marries and goes to live in her husband's house, 'prima facie' gives up her intention to continue to reside in her old house and in that view dismissed the application under Section 4. This view is not in accordance with the view expressed by this High Court, and cannot be followed. According to the Calcutta view, the mere fact that the property is owned by a family consisting of married daughters does not necessarily take the matter out of the scope of Section 4 and the fact that one of the owners has married and gone to live with her husband's family is not 'prima facie' proof of the fact that she does not intend to reside in the ancestral dwelling house. Mr. Jana has also referred us to certain decisions of the Madras High Court to the effect that the provisions of Section 4" should be strictly construed. That again to contrary to the view held by this Court, and the Madras Court has itself departed from this view and given a liberal construction to the provisions of Section 4. Other High Courts have also given a liberal interpretation. In a decision of the Orissa High Court, to which our attention has been drawn -- Mrs. Sushila Baral v. John Bunyan Baral, AIR 1956 Orissa 56, the Calcutta view was followed namely that a liberal interpretation should be given to the wora "family" in Section 4 and it was not necessary to find that the members were constantly residing in it, and that they would constitute an undivided family within the meaning of that section when the dwelling house was left undivided. Section 4, in clear terms, refers to the ownership of the dwelling house by an undivided family, but whether the members of the family actually occupy it or rot, it may still be a dwelling house belonging to a joint family, and it does not cease to be so by reason of a portion being let out to tenants. In Abinash Chandra v. Sm. In Abinash Chandra v. Sm. Kamala Devi, a single Judge of the Patna High Court held that the expression "dwelling house belonging to an undivided family" under Section 4(1) refers to the family dwelling house and not to any house or building for human dwelling belonging to an undivided family, and that a house which was in the occupation of tenants cannot be said to be a family dwelling house. This again is a view which has been dissented from in the Orissa case mentioned above and is not in accordance with the view of this High Court. Similarly, a single Judge of the Rangoon High Court held in J.C. Chatterjee v. Maung Mye, AIR 1940 Rang 53 that a house which is for the most of the time in the occupation of tenants cannot be a dwelling house belonging to an undivided family, within the meaning of Section 4. This view was dissented from by the Orissa High Court In the case mentioned above and is also not in accordance with the view expressed by this Court." 50. In the case of Manick Lal Singh, Calcutta High Court in para No. 6 held as under: - "We have next been referred to 60 Cal WN 871 in case of Ganga Dutt Murarka v. Bibhabeti Debi. Here also their Lordships relied upon the aforesaid decision in 12 Cal LJ 325. The facts were that there were different premises and the matter was sent back to the court below for investigation. We have finally been referred to a judgment in . In that case it was held that if a person lets out the major portion of his residential house but keeps room for himself and subsequently, purchases another house and uses the latter house also for residential purpose, the former house does not cease to be a residential house. We have finally been referred to a judgment in . In that case it was held that if a person lets out the major portion of his residential house but keeps room for himself and subsequently, purchases another house and uses the latter house also for residential purpose, the former house does not cease to be a residential house. In determining whether a house is a dwelling house, we shall first find out whether the house in question was used by the members of the family for residential purpose; secondly, it would include not merely the structure where the members of the family actually reside or used to reside but it would include all appurtenants, that means, if the there is a court-yard which was used by the members, such a court-yard, if there was another structure, as for example, a kitchen or a cowshed or a shed for garage, if those are or were used by the members of the family as parts of their residential house, all such parts would also be included within the word 'dwelling house' Finally we have to consider the equities in partition We have to define 'dwelling house' with reference to partition and equities in partition are required to be considered. Applying, therefore all these tests we find that the portion of Block 'B' which was used for residential purpose of the members of the family, is a part of the dwelling house. We find from the facts of this case that it would not be convenient to sever the tenant's portion in Block 'B' from the residential portion of the Block B as that would affect the value of the land on partition and it would create further difficulties in partition. Therefore, we hold, that the tenanted part of Block 'B' must be deemed to be a part of the dwelling house. Block 'A' may be severed from the rest of the house." 51. Keeping in view the abovesaid facts as well as the language of Section 4 of the Partition Act and Section 44 of the Transfer of Property Act that it is well recognised principle of construction that where the language of a statute is plain and clear without any ambiguity therein then it should be interpreted as it is, and not as it ought to be without adding anything thereto or subtracting anything there from. In such a case it is needless even to find out the intention of the legislature which lay behind the enactment of the said provision of law. It is manifest from Section 4 of the Partition Act adverted to above, that the legislators in their wisdom have abstained from using the word 'family' preceding 'dwelling house'. They have contented themselves by simply using the word 'dwelling house'. The only condition laid down therein is that it must be belonging to the members of an undivided family. 52. It is manifest from above that the law is to be so interpreted as to fructify the purpose of the legislation and to frustrate the mischief. Admittedly Section 4 of the Partition Act is a piece of social legislation. It was enacted to maintain the privacy of a house which is so dear to the hearts of an average Indian that he will go to any extent to safeguard it. In fact it is a part of our ethos. I am tempted here to cite from Goethe, a German Philosopher and poet." He is the happiest, he be a king or peasant who finds peace in his home." Thus if a stranger is allowed to enter a family dwelling house he would intrude upon the privacy and would disturb thereby the peace and tranquility. It would no more be a dwelling house. It would no more remain so and turn into a hell instead of a dwelling house. 53. In view of the abovesaid discussion and taking into consideration the facts of the present case as per the averments made in the documents, namely, agreement to sale and sale deed by which half of the western portion of the house in question has been sold by Ram Dularey @ Ram Prasad to Sri Brij Raj Tripati. It is clear that there is no tenant in the said portion, so from the assessment order in the year 1964-65 by the Municipal authorities the petitioner cannot derive any benefit. 54. It is clear that there is no tenant in the said portion, so from the assessment order in the year 1964-65 by the Municipal authorities the petitioner cannot derive any benefit. 54. So far as the submission made on the basis of statement given by Shamim Ahmad is also of no consequence in view of the discussion as made hereinabove and as per the said fact it cannot be held that Section 4 of the Partition Act will not be applicable in the present case, and the appellant cannot derive any benefit from the law cited on his behalf in the case of Ram Bilas Tiwari (Supra) in the instant matter. 55. Thus, in view of the abovesaid facts, the finding given by the appellate court taking into consideration Section 4 of the Partition Act that the defendant- Smt. Kanti Devi and Km. Malti Devi are entitled to get the benefit of Section 4 of the Partition Act in order to purchase the half share of the western portion which originally belongs to Ori Lal, later on purchased by Pandit Brij Kishore Tripathi from Ram Dularey @ Ram Prasad is perfectly valid and needs no interference, the said view taken by me also get support from observations given by the Hon'ble Apex Court in the case of Ghantesher Ghosh (Supra) wherein it has been held that: "We have also to keep in view the avowed beneficial object underlying the said provision. Section 4 of the Partition Act read with Section 44 of the T.P. Act represents a well-knit legislative scheme for insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share or one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. This legislative scheme seeks to protect them from the onslaught on their peaceful joint family life by stranger-outsider to the family who may obviously be having different outlook and mode of life including food habits and other social and religious customs. This legislative scheme seeks to protect them from the onslaught on their peaceful joint family life by stranger-outsider to the family who may obviously be having different outlook and mode of life including food habits and other social and religious customs. Entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquility not only of the occupants of the dwelling house but also of neighbours residing in the locality and in the near vicinity......" 56. For the foregoing reasons, no substantial question of law arises for consideration in the present appeals. 57. In the result both the appeals lacks merit and are dismissed.